The Law Handbook 2024

Chapter 7.5: The internet and the law 747 providing a service. This means that a complaint about the provision of this service can be regarded as a consumer and trader dispute under section 184 of the Australian Consumer Law and Fair Trading Act 2012 (Vic) (the current version of s 107 of the Fair Trading Act 1999 (Vic), which was considered in the Evagora case). That section gives a consumer the right to bring a claim at VCAT in respect of a consumer and trader dispute. For more information, see Part 7: Consumers, contracts, the internet and copyright. Purchasing from overseas Consumer protection laws When you buy goods or services on the internet from an overseas trader, it can be uncertain whether Australian consumer protection laws apply or whether an Australian court has any jurisdiction. The Competition and Consumer Act 2010 (Cth) applies to overseas traders ‘carrying on business’ (i.e. doing business) in Australia, but it is not clear whether this includes sales made via the internet by overseas traders. If an overseas internet trader is found to have been carrying on business in Australia, then Australian consumer protection laws apply, even if the contract states otherwise (e.g. ‘This contract is governed by the laws of California’). If there is no Australian consumer protection (i.e. the trader is found not to have been carrying on business in Australia), then only the consumer protection laws of the trader’s country (if any) apply. These may provide you less rights than if you had purchased the good or service within Australia. NOTE Even if Australian consumer protection laws apply and an Australian court has jurisdiction over an overseas trader, it may be too difficult and/or too expensive to enforce a judgment against a trader who has no assets in Australia. Australian customs service and GST When an overseas trader sends goods to a consumer in Australia, the Australian Customs Service ( ACS ) checks whether the goods should be cleared for entry into Australia. Prohibited or restricted goods are seized; other goods may require a permit. Imported goods may also be subject to a customs duty. The ACS’s classification of the goods, and the country of origin, is relevant in determining the duty payable by the importer (i.e. the consumer). In addition, the ACS levies a Goods and Services Tax ( GST ) on imports above a ‘low value threshold’ (except tobacco and alcohol). The method of ordering (electronic, phone or mail) does not affect whether GST is payable. Tips for purchasing from overseas Find out from the ACS whether you can legally import the goods you wish to buy, and whether the goods are subject to GST or other taxes. Goods bought from overseas can have significant delivery expenses, so always check the delivery charges carefully. Also, overseas traders may not list the purchase price in Australian dollars, so you should do the conversion. Always check the overseas trader’s website for any terms and conditions that state which country’s laws apply, and which country’s courts would be relevant to your bringing an action in case of a dispute. It is common practice for an overseas trader to designate the law and courts as being in the country in which the business is located. However, there is some legal uncertainty in this area. Internet scams Fraud occurs online, just as it does in the offline world. Because the internet allows for cross-border transactions, it may be difficult to seek redress if you are the victim of online fraud. Your options when things go wrong Contact the trader Contact the trader/seller via telephone, fax, post or email to try to resolve the dispute. Explain the problem and what you want (e.g. a refund, or return of the goods). Keep records of all your communications with the trader. It is recommended that you write a letter, so there is a record of your complaint, which can be used if further action is taken. For help in writing a complaint letter, visit the consumer assistance portal on the Australian Competition and Consumer Commission ( ACCC ) website (www.accc.gov.au/consumers) .